Imagine that you have worked for a company for several years as a sales person. Your compensation is directly related to how many deals you close. Networking is a key part of meeting sales targets. You get excited when you learn that the company is hosting a customer appreciation day. Many of your clients are going to be there. That’s the good news. The bad news is that you are not invited. Why? Because you are not a man. You are female. That’s right. No girls allowed.

I am not making this up. In a recent decision of the Ontario Human Rights Tribunal, McConaghie v. Systemgroup Consulting Inc. 2014 HRTO 295, an employer was ordered to pay damages for hosting a “Men Only” ski day event.

In the winter of 2012, the employer, Systemgroup Inc., sponsored a customer appreciation day for men only. The employer paid for the some male employees and clients to attend Mansfield Ski Club’s “Men’s Day 2012”. The brochure advertised the event as “A Day for Men Without Women and Children” and used the tag line, “Bring your friends, bring your acquaintances, just don’t bring your wife!”. The employer’s electronic invitation to Men’s Day listed planned activities including “massage” and “Hooters Girls”.

When Sheryl McConaghie, who was a director, business development for Systemgroup, learned about the event, and that she had not been invited, she complained to her immediate supervisor and the company president about being excluded. Systemgrouptook the position that a gender exclusive event was not inappropriate. A couple of months later, Systemgroup terminated her, ostensibly for performance reasons.

The Ontario Human Rights Tribunal addressed two issues. First, whether the exclusion from Men’s Day was a violation of the Human Rights Code and second, whether the termination of her employment amounted to an act of reprisal under the Code? Had Ms. McConaghie been punished for making a complaint?

On the first issue, the Tribunal found that Systemgroup’s decision to exclude female sales professionals from an event which was designed to strengthen the relationships between clients and the employer to allow the employer to increase its sales, constituted an act of discrimination based on sex. The employer argued that the employee was not negatively affected and therefore she did not have an arguable case for discrimination. The Tribunal found this reasoning erroneous. Just because her sales would not initially be affected did not mean Ms. McConaghie should not get a chance to network.

Second, the Tribunal concluded that the employer had engaged in an act of reprisal by terminating McConaghie’s employment. More precisely, the Tribunal found that the evidence established, on balance, that the employer’s decision to terminate Ms. McConaghie was based at least, in part, on her assertion that she was being discriminated against based on her sex.

On its face, the lessons from this case are fairly obvious. Many reading this case will be shocked that it even happed in the first place. Again, this case is a reminder that human rights legislation is to be taken seriously. What may seem playful and funny one day, can be harmful, create unwanted liability and be difficult to justify later.  Systemgroup should have known better. As the Tribunal noted, this was not an unsophisticated employer. It had an extensive employee handbook outlining harassment and non-discrimination policies which addressed prohibited off-site social activities. Yet despite this, management made a poor judgment call in deciding to host an event which excluded women. The jokey comments added a gratuitousness which was simply unnecessary. I am sure they did not help the employer when it came to justify itself later.

This brings me to a related point about the use of email humour at work. Some jokes are best avoided. In my experience, often someone doesn’t get the joke, and it can backfire. The email is sent around. No doubt the “Hooters” reference and the tag line “Don’t bring your wife” would have been tough to explain to the adjudicator hearing the case.

Equally important, this case reminds employers to be careful in how they treat their employees who raise their rights during the course of employment. Despite the employer’s argument to the contrary, the Tribunal was not persuaded that the termination was unrelated to the complaint about the Men’s Day.

Marie-Helene Mayer